PUBLIC LAW AND PUBLIC CHOICE1
| Published date | 01 November 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01781.x |
| Author | Patrick McAuslan |
| Date | 01 November 1988 |
THE
MODERN
LAW
REVIEW
Volume 51 November
1988
No.
6
PUBLIC LAW AND PUBLIC CHOICE’
To
become the Professor of Public Law at the London School
of
Economics and Political Science is both a great honour and a great
responsibility. It is
so
not just because
I
am now a member of the
foremost centre
of
social sciences (of which law is one) in the
country but also because
I
have succeeded to a chair which has
become distinguished by the outstanding quality of my two
predecessors, the late Stanley de Smith and John Griffith. Each in
their way were (and in the case of John happily still is) intellectual
giants from whom
I
have gained a great deal in my career. Stanley
de Smith virtually created the subject of judicial review as an
intellectual discipline; his was one of those master minds similar to
that of Blackburn
J.
of whom it was said in respect of his judgment
in
Rylands
v.
Fletche?
that he gathered together a whole series of
disparate cases which were wandering about in the pathless fields
of
jurisprudence and guided them safely to a new home.3
So
it was
with
Judicial Review
of
Administrative A~tion.~
But for me, even
more important than that seminal book was his breadth of vision,
the comparative dimension he brought to his work5; his realisation
that there was a Commonwealth of public law and that we in the
United Kingdom had at least as much to learn from that
An
inaugural lecture given at the L.S.E.
on
June 14, 1988.
This
topic was suggested
to me in the course of an informal after lunch conversation in the Senior Common Room
of the University
of
Birmingham in November 1987.
I
am most grateful to Stewart
Ransom who unwittingly put the idea into
my
mind. The point
is
worth making in this
day and age; informal social intercourse can produce ideas, even though, to the
outsider-the Government?-it seems as if academics are merely wasting their time and
the taxpayers’ money.
(1866) L.R. 1 Ex. 265.
Wigmore, “Responsibility for Tortious Acts: Its History” (1894) 7 Harv.L.R. 441 at
p.454 quoted in Prosser,
Selected
Topics
on the Law
of
Torts
(Michigan, 1953), at
footnote 12, v.138.
-
London,-1959.
The New Commonwealth and its
Consti&tions
(London, 1964);
Microstates and
Micronesia; Problem
of
America’s Pacific Islands and other Minute Territories
(New
York, 1970). 681
682
THE
MODERN
LAW
REVIEW
[Vol.
51
Commonwealth as we had to give.6
I
began my career as a law
teacher in the Commonwealth, in Tanzania’ and
I
have no doubt
that the lessons learned there-the importance of relating the law
to the needs and aspirations of the society of which it is a part, the
importance therefore of lawyers understanding something about
the society in which they are to practise their craft, and the role
law can and does play in societal change have stood me in good
stead throughout my career. It is a pity that the comparative
dimension to public law which was Stanley de Smith’s hallmark has
been rather lost sight of by too many of today’s public lawyers in
the United Kingdom.
John Griffith’s was the first book on administrative law8
I
read as
an undergraduate and it opened my eyes to a totally different
world of public law than that then available in the standard texts-
and indeed still available.
If
Stanley de Smith’s work emphasised
the importance of the comparative dimension in public law, John
Griffiths’ has emphasised the close and continuing connection
between the political process and public law: how
we
cannot hope
to understand the real world of public law without at the same
time understanding something of the real world of politics and
government, how decisions are made, what influences are brought
to bear
on
decision-makers, how process affects policy and policy
process, how public law and political process are in many respects
two sides of the same coin. All public lawyers today-ritical and
not
so
critical, orthodox and unorthodox-in practice or in
academia, whether they realise it or not, owe a considerable
intellectual debt to John Griffith’s pioneering work on the interface
between public law and politics and just as
I
gladly acknowledged
my debt to Stanley de Smith’s comparative approach to public law,
so
too do
I
acknowledge my debt to John Griffith’s linkages
between law and politics.
It is then in the spirit of my two predecessors that
I
turn to the
subject of my lecture,
Public
Law
and
Public Choice,
for public
choice
as
I
will discuss in more detail directly is
an
approach to the
political process developed very largely by American economists
and political scientists and now a not inconsiderable intellectual
support for current Government policies.
I
think it important to
Thus, from the 1st ed. of
Judicial Review
of
Administrative Action,
there were
co
ious references to judicial decisions from the Commonwealth.
pAmongst my colleagues in the Faculty of Law, University College, Dar es Salaam
were Professor William Twining, now at UCL; Professor James Read, now at SOAS;
Professor Yash Ghai, now at the University
of
Wanvick; Aki Sawyyer, now Vice-
Chancellor of the University
of
Ghana; Nkambo Mugerwa, who became Attorney-
General
of
Uganda; and A.
B.
Weston, the first Dean of the Faculty, now retired, who
went on to be Dean of the Faculty
of
Law in the University of Papua New Guinea,
Special Consultant to the Attorney-General
of
Tanzania and foundation Dean
of
the
Faculty
of
Law in the University of Mauritius. Professor Aubrey Diamond
was
our first
external examiner.
J. A.
G.
Griffith and
H.
Street,
Principles ofAdminisrrurive Law
(London,
1952).
I
used the 2nd ed., published in
1957,
as an undergraduate.
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